Khosa and Others v Minister of Social Development and Others; Mahlaule and Another v Minister of Social Development and Others

Two consolidated applications were brought by Mozambican citizens who had acquired permanent residence status in South Africa under exemptions granted under the Aliens Control Act 96 of 1991. All applicants fled Mozambique in the 1980s due to civil war and integrated into local communities, except for one who worked for the National Parks Board. All applicants were destitute and would qualify for social assistance under the Social Assistance Act 59 of 1992 but for the fact that they were not South African citizens. In the Khosa matter, applicants challenged section 3(c) which reserved social grants for aged South African citizens only. In the Mahlaule matter, the challenge was to sections 4(b)(ii) and 4B(b)(ii) which reserved child-support grants and care-dependency grants respectively for South African citizens only. The High Court declared the impugned provisions unconstitutional but did not provide reasons. The respondents did not oppose in the High Court. The matter came to the Constitutional Court for confirmation of the order of invalidity. The respondents then sought to oppose and raised procedural objections, eventually conceding that children who are South African citizens should not be denied access because their primary care-giver is not a citizen.

• Whether permanent residents can be excluded from the social welfare system on the basis of citizenship
• Whether sections 3(c), 4(b)(ii) and 4B(b)(ii) of the Social Assistance Act 59 of 1992 are inconsistent with the Constitution
• Whether the exclusion of permanent residents from social grants violates section 27 (right of access to social security)
• Whether the exclusion constitutes unfair discrimination under section 9
• Whether the limitation on the rights of permanent residents is justifiable under section 36
• Whether the exclusion of children from benefits based on their parents' citizenship violates section 28 (children's rights)
• Whether this Court can declare unconstitutional a provision that has not yet been brought into force
• What remedy is appropriate for the constitutional defects identified
• Whether section 27(2) constitutes an internal limitation and how it interacts with section 36

The High Court's orders were set aside and replaced. For section 3(c), the omission of the words 'or permanent resident' after 'citizen' was declared inconsistent with the Constitution, both in the current version and in the amended version in the Welfare Laws Amendment Act. The section was to be read as including those words. For section 4(b)(ii), the omission of 'or permanent residents' after 'citizens' was declared unconstitutional and the section was to be read as including those words. For section 4B(b)(ii) (not yet in force), the omission of 'or permanent residents' after 'citizens' was declared unconstitutional and the section was to be read as including those words when brought into force. The first and second respondents were ordered to pay the costs of the confirmation proceedings jointly and severally. The remedy was reading-in rather than striking down or suspension of invalidity, to provide immediate relief while retaining the scheme's structure.

The binding legal principles established are: (1) The word 'everyone' in section 27(1) includes permanent residents, not only citizens. The Constitution does not limit socio-economic rights to citizens as it does explicitly for other rights (such as political rights and access to land under section 25(5)). (2) Permanent residents who have made South Africa their home, pay taxes, contribute to society, and are subject to its laws cannot reasonably be excluded from the social security system on the basis of citizenship alone. (3) Discrimination on the basis of citizenship is discrimination on an analogous ground to those listed in section 9(3) and the discrimination against permanent residents in this case was unfair because it had a severe impact on their dignity, relegated them to the margins of society, and affected their enjoyment of fundamental rights. (4) The exclusion of permanent residents from social grants does not constitute a reasonable legislative measure under section 27(2). While the state has limited resources and legitimate concerns about immigration policy, these considerations do not outweigh the importance of providing access to social assistance to all who live permanently in South Africa and the impact on life and dignity that denial has. (5) Children who are South African citizens cannot be denied social assistance on the basis that their primary care-giver or parent is not a citizen. This violates section 28(1)(c) which guarantees every child the right to basic nutrition, shelter, basic health care services and social services. The best interests of the child under section 28(2) are paramount. (6) This Court has jurisdiction under section 172(2)(a) to determine the constitutional validity of provisions in an Act of Parliament that have not yet been brought into force. (7) Where a provision is unconstitutional only because it omits certain words, reading-in is the appropriate remedy where it cures the defect with precision, provides immediate relief, and respects the role of the legislature. (8) Socio-economic rights must be understood in the context of the founding constitutional values of human dignity, equality and freedom. The denial of access to social security can implicate multiple constitutional rights that reinforce one another at their point of intersection.

Several important non-binding observations were made: (1) The Court noted but did not decide the relationship between the internal limitation in section 27(2) ('reasonable legislative measures') and the general limitation clause in section 36. The majority assumed the outcome would be the same under either provision but did not establish whether different standards apply. This remains an open question requiring future consideration. (2) The Court observed that it would be reasonable to exclude from social assistance those with only a tenuous link to South Africa, such as temporary visitors, workers who are citizens of other countries, and illegal residents. The position of permanent residents is fundamentally different as they have made South Africa their home. (3) The Court noted the importance of giving reasons when declaring legislation unconstitutional. The High Court's failure to provide reasons in this case deprived the Constitutional Court of valuable assistance and was criticized. (4) The Court emphasized that challenges to legislation have grave implications and far-reaching effects, and that it is government's duty to ensure relevant evidence is placed before courts, even in cases where there may be nothing to say in support of the challenged legislation. The respondents' failure to oppose in the High Court was criticized. (5) The Court observed that public interest requires certainty regarding the constitutionality of legislation and that orders of invalidity should not be held in abeyance longer than necessary, particularly where indigent persons in dire circumstances are involved. (6) The Court noted that settlement between parties cannot cure legal uncertainty or dispose of confirmation proceedings, as the impact would be too limited and would not resolve the broader constitutional issues. (7) Mokgoro J noted that while self-sufficiency arguments may hold for immigrants viable in the job market who are applying for permanent residence, they are not valid for children and the elderly who are already settled permanent residents and part of South African society. (8) The Court observed that the state can protect itself against immigrants becoming financial burdens through careful immigration policies, adequate security from sponsors, or requiring permanent residents to look first to sponsors, but abandoning settled permanent residents to destitution is not constitutionally acceptable. (9) Ngcobo J made important observations about the differences between citizens and permanent residents in terms of political rights, freedom of occupation, and the oath of allegiance, and noted that the five-year waiting period provides a legitimate incentive for naturalization and full commitment through citizenship.

This landmark case is significant for several reasons: (1) It established that socio-economic rights in the Constitution extend to permanent residents, not just citizens, reflecting the inclusive meaning of 'everyone' in section 27; (2) It demonstrated the intersection of socio-economic rights with dignity, equality and freedom as founding constitutional values; (3) It confirmed that differentiation based on citizenship can constitute unfair discrimination on an analogous ground under section 9; (4) It set an important precedent for the standard of 'reasonableness' under section 27(2), holding that financial considerations alone cannot justify excluding vulnerable permanent residents from social assistance; (5) It prioritized children's rights under section 28, confirming that children cannot be denied benefits based on their parents' citizenship status; (6) It clarified that this Court can declare unconstitutional provisions that have been enacted but not yet brought into force; (7) It demonstrated the use of reading-in as a remedy to cure constitutional defects with precision while respecting the legislature's role; (8) It affirmed that the denial of access to social security to those unable to support themselves affects fundamental rights including dignity and life; (9) It rejected immigration policy arguments that would exclude settled permanent residents who have integrated into South African society; (10) The case illustrates proper constitutional methodology when multiple rights intersect and reinforce one another. The case had immediate practical impact on thousands of permanent residents who were previously excluded from the social safety net, and broader implications for the interpretation of socio-economic rights in South Africa's transformative constitutional order.